Delhi District Court
Smt. Maina Devi vs Rati Ram & Ors on 7 November, 2016
Sh . G. N. Pandey, Addl. District Judge (NE) Karkardooma Courts, Delhi.
IN THE COURT OF SH. G. N. PANDEY
ADDITIONAL DISTRICT JUDGE02, (NE)
KARKARDOOMA COURTS, DELHI
CS No. 198/16
IN THE MATTER OF:
Smt. Maina Devi
D/o Late Sh. Ami Chand
W/o Sh. H. L. Gola
R/o 2/78, First Floor, Lalita Park,
Behind Gurudwara Singh Sabha,
Vikas Marg, Laxmi Nagar, Delhi92. ........ Plaintiff
V E R S U S
(1) Rati Ram
S/o Late Sh. Ami Chand
R/o B3( Old No. 624/29),
Bhajan Pura, Village Ghonda,
Shahdara, Delhi110053
(2) Smt. Jai Rani
W/o Sh. Rati Ram
R/o B3, (Old No. 624/29),
Bhajanpura, Village Ghonda,
Shahdara, Delhi110053 .............. Defendants
Date of Institution : 04.09.2003
Date of Arguments : 06.10.2016
Date of Judgment : 07.11.2016
Decision : Suit is dismissed with cost
CS No. 198/16 1/29
Maina Devi V/s Rati Ram & Ors.
Sh . G. N. Pandey, Addl. District Judge (NE) Karkardooma Courts, Delhi.
Suit for possession, declaration & damages/mesne profits
JUDGMENT
1.The plaintiff filed this suit against the defendants for possession in respect of the property bearing No. (Old) 624/29, New B3 admeasuring 213.5 Sq. Yards out of Khasra No. 256/1 situated in the abadi of village Ghonda, Gujran Khadar colony, known as Bhajan Pura, Illaqa Shahdara, Delhi53( hereinafter called the suit property as shown in red colour in the site plan attached with the plaint). Plaintiff has further prayed for decree of Rs. 7,20,000/ alongwith pendentelite and future mesne profits @ Rs. 20,000/ per month from the date of the filing of the suit till the date of handing over the possession of the suit property.
It is noted that this suit originally was filed by the plaintiff before Hon'ble Delhi High Court on 15.09.03, thereafter the case was transferred in view of the pecuniary jurisdiction to this court on 01.04.2016.
2. It is stated in the plaint that plaintiff is the Sr. Citizen and owner of the suit property having purchased from defendant No. 1 and 2 vide agreement to sell , GPA, affidavit, wills etc dated 01.10.87 for Rs. 11,000/. At the time of execution of documents, the possession of the suit property was handed over to the plaintiff, plaintiff constructed boundary wall and one room in the said plot and continued in possession till 12.10.91. In the night of 1112.10.1991, the defendant No. 1 and 2 demolished the boundary wall and occupied the suit property forcibly. The plaintiff lodged complaint with the police at PS Bhajanpura on 12.10.91. On 22.10.91, the plaintiff CS No. 198/16 2/29 Maina Devi V/s Rati Ram & Ors.
Sh . G. N. Pandey, Addl. District Judge (NE) Karkardooma Courts, Delhi.
again constructed the boundary wall under the security of DCP of the area demolished by defendant No. 1 and 2 but the defendants again demolished the wall on 2223.10.91. The husband of plaintiff and son received summon on 23.10.91 from the court of Sub Judge Delhi regarding the suit for permanent injunction filed by the defendant No. 1; the plaintiff was not made a party in the said suit despite being owner and necessary party. When on 06.12.91, the plaintiff visited the suit property alongwith husband, the defendants threatened and did not allow them to enter there; the police was called and with the intervention of the local police, compromise was recorded but the defendants did not hand over the possession despite compromise. The plaintiff requested the Prajapati Samaj for justice in this matter but of no avail. The defendants raised illegal and unauthorized construction on the suit property and occupying the same therefore plaintiff filed this suit against the defendants.
3. After the service of summons upon the defendants, the written statement was filed by defendants contending that this suit is not maintainable and filed without cause of action, the plaintiff has concealed the material facts. As contended, the plaintiff has no locus standi to file this suit; this suit is liable to be dismissed; this suit is barred by limitation. The defendants claimed that plaintiff has no title documents in respect of the suit property. The defendants denied the ownership of the plaintiff; handing over the possession contending that the defendants never sold the suit property to the plaintiff. As contended, the property was owned by Sh. Jumma Mal admeasuring 427 Sq. yards to sold it to defendant No. 2 for Rs. 21,000/ on 23.11.81. Sh. Jumma Mal further executed one will in favour of CS No. 198/16 3/29 Maina Devi V/s Rati Ram & Ors.
Sh . G. N. Pandey, Addl. District Judge (NE) Karkardooma Courts, Delhi.
defendant No. 1 in respect of suit property and after death of Jumma Mal, the defendant No. 1 became the owner ; the will was probated. Defendants denied regarding selling of any portion of the suit property to the plaintiff contending that the documents relied by plaintiff are forged and fabricated. While denying rest of the material contentions of the plaintiff in the plaint, the defendants prayed to dismiss the suit with heavy cost.
4. Replication to the WS of the defendants was filed by the plaintiff whereby the plaintiff has reiterated the averments made in the plaint denying the contentions of the defendants in the written statement.
5. In view of the pleading of the parties, following issues were framed vide order dt. 06.03.2006:
(i) Whether the suit of the plaintiff is not maintainable in the absence of title documents of the property? OPD
(ii) Whether the suit of the plaintiff is barred by limitation? OPD
(iii) Whether the agreement to sell dated 01.10.87 is void ab initio or is liable to be declared as void as claimed by the defendants? OPD
(iv) Whether the plaintiff is entitled to decree of possession of the property in question as prayed for ? ( OPP).
(v) Whether the plaintiff is entitled for decree of recovery of Rs. 7,20,000/ alongwith pendentelite and future mesne profits @ Rs. 20,000/ p.m. or of any other CS No. 198/16 4/29 Maina Devi V/s Rati Ram & Ors.
Sh . G. N. Pandey, Addl. District Judge (NE) Karkardooma Courts, Delhi.
amount as damages/ mesne profits, as prayed for? OPP
(vi) Relief.
And the case was fixed for plaintiff's evidence.
6. The plaintiff filed her affidavit by way of evidence Ex. PW 1/A and examined herself as PW1 in support of the case. The witness deposed nothing but as per averments made in the plaint. The witness has also deposed regarding the documents Ex. P1 to P6 i.e. agreement to sell, GPA, affidavit, receipt and wills executed by defendant No. 1 and 2 and site plan Ex. P12.
Plaintiff has examined her husband namely Sh. H. L. Gola as PW2 by way of affidavit Ex. PW2/A who deposed nothing but as deposed by PW1. As no other witness was examined by the plaintiff, the PE was closed and case was fixed for DE.
7. The defendant No. 1 Sh. Ratti Ram on the other hand, filed his affidavit by way of evidence Ex. DW 1/ A and additional affidavit Ex. DW 1/B was examined as DW1. The witness has deposed regarding the relevant documents in support of defence. The DE was thereafter closed.
8. I have heard the Ld. counsel for the parties and gone through the relevant material on records. I have also considered the relevant provisions of law and gone through the written submissions filed on behalf of parties in support of contentions.
Having drawn my attention to the pleadings of the parties, testimony of witnesses and materials on records, it is submitted by learned counsel for the plaintiff that plaintiff has proved her case and the defendant No. 1 and 2 have no right, title or interest in the suit property; it has been proved CS No. 198/16 5/29 Maina Devi V/s Rati Ram & Ors.
Sh . G. N. Pandey, Addl. District Judge (NE) Karkardooma Courts, Delhi.
that the plaintiff is the owner of the suit property. The Ld. Counsel for the plaintiff prayed to pass decree in favour of plaintiff and against the defendants.
The Ld. Counsel for the defendants on the other hand, having drawn my attention to the testimony of the witnesses and documents on records submitted that the plaintiff has failed to prove the case and discharge the onus. It is also submitted by Ld. counsel for the defendants that plaintiff categorically failed to prove that she has any right in the suit property. It is argued that the suit property is owned by defendant No. 1 and possession of the same was never handed over to the plaintiff as claimed in the plaint. As argued, the plaintiff by no stretch of imagination can be considered to be owner of the suit property on the basis of documents relied by her ; plaintiff has no locus standi to file this suit and plaintiff has concealed the material facts and therefore, the suit is liable to be dismissed, there is no ground for passing decree against the defendants and therefore, the suit be dismissed with cost. It is vehemently argued that plaintiff cannot be considered as owner on the basis of the documents relied by her as these documents are unregistered and not proved as per provisions of law, are forged and fabricated. The ld. Counsel for defendants has relied upon the following judgments in support of contentions:
1. AIR 2005 Karnataka 70 titled Sri Chinnappa V/s Corporation of the City of Bangalore
2. Hon'ble Delhi High Court in Sh. Sanjay Chahal V/s Sh. Narendra Singh decided on 06.12.2006
3. MANU/SC/7376/2008 titled Anathula Sudhakar V/s P. CS No. 198/16 6/29 Maina Devi V/s Rati Ram & Ors.
Sh . G. N. Pandey, Addl. District Judge (NE) Karkardooma Courts, Delhi.
Buchi Reddy (Dead) by LRs. & Ors.
9. I have given my thoughtful consideration to the submissions made on behalf of the parties. My findings issuewise are as under : Issue No. II:
(ii) Whether the suit of the plaintiff is barred by limitation? OPD
10. The onus to prove this issue was on the defendants. As observed, the plaintiff has filed this suit for possession, declaration and mesne profits/ damages against the defendants contending that she has purchased the suit property vide documents dt. 01.10.87 i.e. GPA, agreement to sell, wills, affidavit etc. It is further claimed that the plaintiff was dispossessed from the suit property on 12.10.91; again on 22.10.91. The plaintiff has filed this suit against the defendants on 04.09.03. The plaintiff has filed this suit on the basis of title and the suit of the plaintiff appears to be filed within the period of 12 years from the date of dispossession i.e. either computing from 12.10.91 or 22.10.91. The contentions of Ld. Counsel for plaintiff that the period of limitation needs to be computed from 01.10.87 when the plaintiff has purchased the suit property appears to have no substance as the defendants themselves denied that possession of the suit property was never handed over to the plaintiff. The suit of the plaintiff appears to be filed without period of limitation. This issue is decided in favour of plaintiff and against the defendants.
Issue No. I & III:
(i) Whether the suit of the plaintiff is not maintainable in CS No. 198/16 7/29 Maina Devi V/s Rati Ram & Ors.
Sh . G. N. Pandey, Addl. District Judge (NE) Karkardooma Courts, Delhi.
the absence of title documents of the property? OPD
(iii) Whether the agreement to sell dated 01.10.87 is void ab initio or is liable to be declared as void as claimed by the defendants? OPD
11. The onus to prove both issues was on the defendants. The defendants have averred that suit property was never sold and agreement to sell dt. 01.10.87 is void. The defendants further claimed that husband of plaintiff has manipulated the documents in the garb of obtaining electricity and water connection. The plaintiff has deposed regarding the documents during her examination which are Ex. P1 to Ex. P6 i.e. agreement to sell, GPA, affidavit, receipt and wills executed by defendants in favour of plaintiff. The DW1/ defendant No. 1 on the other hand, denied the execution of agreement to sell but during cross examination admitted that all these documents bears his signatures. It is further observed that these documents were admitted by DW1 during exhibition of documents but no steps has been taken to declare the documents as null and void till today. The defendants have not taken any action in respect of the documents if it was forged and fabricated by the plaintiff or her husband. Infact defendants have not taken any action in respect of any forged and fraud committed by plaintiff and thumb impression in respect of agreement to sell till today. The plaintiff has filed this suit on the basis of documents Ex P1 to Ex. P6 and claimed her title on the basis of these documents. The contentions of the defendants accordingly that this suit is not maintainable is without any ground and the contentions of the defendants that agreement to sell is void CS No. 198/16 8/29 Maina Devi V/s Rati Ram & Ors.
Sh . G. N. Pandey, Addl. District Judge (NE) Karkardooma Courts, Delhi.
appears to have no substance. The issue No. I and III are decided against the defendants and in favour of plaintiff.
Issue No. IV & V:
(iv) Whether the plaintiff is entitled to decree of possession of the property in question as prayed for ?( OPP).
(v) Whether the plaintiff is entitled for decree of recovery of Rs. 7,20,000/ alongwith pendentelite and future mesne profits @ Rs. 20,000/ pm. or of any other amount as damages/ mesne profits, as prayed for? OPP
12. The plaintiff has filed this suit for declaration, possession and mesne profits. The onus to prove these issues was on the plaintiff and these issues were framed also in view of contentions of the plaintiff in the plaint. As both these issues are interrelated/ interconnected, these issues are examined and decided together.
13 It is well settled that a suit has to be tried on the basis of the pleadings of the contesting parties which is filed in the suit before the trial court in the form of plaint and written statement and the nucleus of the case of the plaintiff and the contesting case of the defendant in the form of issues emerges out of that. Being a civil suit for partition, this suit is to be decided on the basis of preponderance of probabilities. In the case of Raj Kumar Singh & Anr. Vs. Jagjit Chawla, reported in 183 (2011) DLT 418, the Hon'ble High Court of Delhi was pleased to observe that "A civil case is decided on balance of probabilities. In the case of Vishnu Dutt Sharma Vs. Daya Sapra, reported in (2009) 13 SCC 729, the Hon'ble Supreme CS No. 198/16 9/29 Maina Devi V/s Rati Ram & Ors.
Sh . G. N. Pandey, Addl. District Judge (NE) Karkardooma Courts, Delhi.
Court was pleased to observe as under:
'' 8. There cannot be any doubt or dispute that a creditor can maintain a civil and criminal proceedings at the same time. Both the proceedings, thus, can run parallel. The fact required to be proved for obtaining a decree in the civil suit and a judgment of conviction in the criminal proceedings may be overlapping but the standard of proof in a criminal case visavis a civil suit, indisputably is different. Whereas in a criminal case the prosecution is bound to prove the commission of the offence on the part of the accused beyond any reasonable doubt, in a civil suit " preponderance of probability" would serve the purpose for obtaining a decree".
14. Section 101 of the Evidence Act, 1872 defines " burden of proof"
and laid down that the burden of proving a fact always lying upon the person who asserts the facts. Until such burden is discharged, the other party is not required to be called upon to prove his case. The court has to examine as to whether the person upon whom the burden lies has been able to discharge his burden. Until he arrives at such conclusion, he cannot proceed on the basis of weakness of other party. Further, Section 58 of the Indian Evidence Act contained that no fact need to be proved in any proceedings which parties thereto or their agents agree to admit at the CS No. 198/16 10/29 Maina Devi V/s Rati Ram & Ors.
Sh . G. N. Pandey, Addl. District Judge (NE) Karkardooma Courts, Delhi.
herein, or which, before the hearing, they agree to admit by any writing under their hands or which by any rule of pleadings enforce at the time they are deemed to have admitted by their pleadings.
15. The brief and relevant facts for filing of this suit alongwith the defence of the defendants has been mentioned at the outset. The plaintiff claimed herself the owner of the suit property having purchased from defendant No. 1 and 2. There is no dispute by the plaintiff regarding the ownership of defendants as plaintiff is claiming her right, title or interest in the suit property through them only. The plaintiff is claiming her right, title or interest in the suit property on the basis of documents stated to be executed by defendant No. 1 and 2 dt. 01.10.87 which are Ex P1 to Ex. P
6. The agreement to sell Ex. P1, GPA Ex. P2, affidavit Ex. P4 and wills Ex. P5 and P6 are notarized. None of these documents are registered except the receipt which shown consideration amount of Rs. 11,000/ paid by plaintiff to the defendants. Sh. Jumma Mal, previous owner has executed GPA and will in favour of defendant No. 1 and agreement to sell was executed in favour of Smt. Jai Rani/ defendant No. 2. By virtue of these documents only, plaintiff by no stretch of imagination can be considered to be the owner of the suit property having right, title or interest in respect of the same. The plaintiff during cross examination admitted that she never resided in the disputed property. The plaintiff further not produced on record any documents to show that she ever remained in any portion of the suit property, raised any construction and spent the amount on such construction etc. The plaintiff has not even produced and proved the complaints made by her against the defendants to show that she was CS No. 198/16 11/29 Maina Devi V/s Rati Ram & Ors.
Sh . G. N. Pandey, Addl. District Judge (NE) Karkardooma Courts, Delhi.
ever in possession of suit property. Infact no steps was taken by plaintiff in this respect.
16. The parties led their evidence as per the averments made in the pleadings. The plaintiff is claiming her right, title or interest on the suit property on the basis of documents stated to be executed by the defendants i.e. GPA, wills, agreement to sell and receipt etc. I have gone through the testimony of plaintiff which appears to be totally shattered during cross examination and witness has claimed that she has purchased the suit property from defendant No. 2; she is not aware about any construction in the suit property and site plan if any filed in this case. The testimony of PW2 is also not helpful. The plaintiff is claiming ownership only on the basis of agreement to sell which is not signed by plaintiff at all. The plaintiff during cross examination admitted that she never visited the suit property after 1989 and therefore the factum of demolition as alleged by plaintiff appears to be without any substance. The question may be asked as to when the defendant No. 1 has no right in the suit property, why the documents were got executed by the plaintiff from him as well alongwith defendant No. 2. There is no dispute raised that after the death of Sh. Jumma Mal, defendant No. 1 became the owner of the suit property by virtue of will executed by him. By virtue of these documents Ex. P1 to Ex. P6 only the plaintiff by no stretch of imagination can be considered to be the owner of the suit property having right, title or interest in respect of the same. The claim of the plaintiff accordingly regarding ownership appears to be without any ground.
17. Before proceedings, it is necessary to note that the parties are well CS No. 198/16 12/29 Maina Devi V/s Rati Ram & Ors.
Sh . G. N. Pandey, Addl. District Judge (NE) Karkardooma Courts, Delhi.
known to each other and well have cordial relation as admitted by them. The ownership of defendants is also admitted by plaintiff as the plaintiff is claiming her title only through them. The main and only contentions of the plaintiff remained that the suit property was transferred in the name of plaintiff by defendants by virtue of documents Ex. P1 to Ex. P6. Even if it is presumed that these documents were executed by defendants for consideration even then by virtue of these documents, the plaintiff cannot be considered to be the owner of the suit property having right, title or interest in respect of the same.
18. It appears that the main issue to be adjudicated remained as to whether the plaintiff has become the owner of the suit property ? on the basis of the GPA, agreement to sell, receipt, affidavit and wills executed by the defendants in favour of the plaintiff. The ownership of the defendants is admitted by the plaintiff who claims title through them. As held in judgment reported as Uttam Chand Kothari Vs. Gauri Shankar Jalan, AIR 2007 Gau. 20, admission in the written statement cannot be allowed to be withdrawn. In view of this legal position of the Evidence Act, it is clear that it is for the plaintiff to prove that she is owner of the property having purchased the same from the defendants.
19. It is appropriate and relevant to note the relevant legal provisions and authorities for proper examination and adjudication of the issues.
Section 5 of the Transfer of Property Act, 1882 ( ' TP Act' for short) defines ' transfer of property' as under: " 5. Transfer of Property defined: In the following sections " transfer of property " means CS No. 198/16 13/29 Maina Devi V/s Rati Ram & Ors.
Sh . G. N. Pandey, Addl. District Judge (NE) Karkardooma Courts, Delhi.
an act by which a living person conveys property, in present or in future, to one or more other living persons, or to himself 9 for to himself) and one or more other living persons; and " to transfer property" is to perform such act." XXX XXX Further Section 54 of the TP Act defines ' sales' thus :
" Sale" is a transfer of ownership in exchange for a price paid or promised or partpaid and partpromised.
Sale how made. Such transfer, in the case of tangible immovable property of the value of one hundred rupees and upwards, or in the case of a reversion or other intangible thing, can be made only by a registered instrument.
In the case of tangible immovable property of a value less than one hundred rupees, such transfer may be made either by a registered instrument or by delivery of the property. Delivery of tangible immovable property takes place when the seller places the buyer, or such person as he directs, in possession of the property.
Contract for sale. A contract for the sale of immovable property is a contract that a sale of such property shall take place on terms settled between the parties.CS No. 198/16 14/29
Maina Devi V/s Rati Ram & Ors.
Sh . G. N. Pandey, Addl. District Judge (NE) Karkardooma Courts, Delhi.
It does not, of itself, create any interest in or charge on such property."
Section 53 A of the TP Act defines ' part performance ' thus :
" Part Performance. Where any person contracts to transfer for consideration any immovable property by writing signed by him or on his behalf from which the terms necessary to constitute the transfer can be ascertained with reasonable certainty.
And the transferee has, in part performance of the contract, taken possession of the property or any part thereof, or the transferee, being already in possession, continues in possession in part performance of the contract and had done some act in furtherance of the contract.
And the transferee has performed or is willing to perform his part of the contract, then, notwithstanding that where there is an instrument of transfer, that the transfer has not been completed in the manner prescribed therefor b the law for the time being in force, the transferor or any person claiming under him shall be debarred from enforcing against the transferee and persons claiming under him any right in respect of the property of which the transferee has taken or CS No. 198/16 15/29 Maina Devi V/s Rati Ram & Ors.
Sh . G. N. Pandey, Addl. District Judge (NE) Karkardooma Courts, Delhi.
continued in possession, other than a right expressly provided by the terms of the contract:
Provided that nothing in this section shall affect the rights of a transferee for consideration who has no notice of the contract or of the part performance thereof."
Section 17 of the Indian Registration Act, 1908: " 17. Documents of which registration is compulsory. (1) The following documents shall be registered, if the property to which they relate is situate in a district in which, and if they have been executed on or after the date on which, Act XVI of 1864, or the Indian Registration Act, 1866 ( 20 of 1866), or the Indian Registration Act, 1871 ( 8 of 1871), or the Indian Registration Act, 1877 ( 3 of 1877), or this Act came or comes into force, namely
(a) Instrument of gift of immovable property;
(b) other nontestamentary instruments which purport or operate to create, declare, assign, limit or extinguish , whether in present or in future, any right, title or interest, whether vested or contingent, of the value of one hundred rupees and upwards, to or in immovable property.
20. It is settled law that title of immovable property above the value of CS No. 198/16 16/29 Maina Devi V/s Rati Ram & Ors.
Sh . G. N. Pandey, Addl. District Judge (NE) Karkardooma Courts, Delhi.
Rs. 100/ can only be transferred by way of a registered instrument as prescribed Under Section 17 of the Indian Registration Act, 1908 and by way of documents of sale as recognized under Section 54 of the Transfer of the Property Act. As held in AIR 1969, SC 1316, the documents of which registration is necessary under the transfer of Property Act ( such as under
Section 54 of the TP Act) but not under the Registration Act fall within the scope of Section 49 of the Registration Act and if not registered are not admissible as evidence of any transaction of acting any immovable property comprise therein and do not affect any such immovable property.
21. As held in 128 (2006) DLT 407 (DB) titled M. L. Aggarwal Vs. Oriental Bank of Commerce & Ors, : " The petitioner has only produced an agreement to sell, will and a power of attorney and a receipt for payment of money but these in our opinion do not constitute a sale. Under Section 17 (1) (b) of the Registration Act, Sale of an immovable property can only be by a registered deed. In our opinion, the petitioner has no right, title or interest in the suit property as he has not purchased it by any registered sale deed. An immovable property cannot be purchased by a mere power of attorney or agreement to sell."
The ratio was further reiterated by Hon'ble Delhi High Court in AIR 2003, Delhi 120 titled G. Ram Vs. DDA wherein it is mentioned that transfer of immovable property can only be affected by executing a registered documents. Merely making an agreement of sale or execution of power of attorney could not transfer right, title or interest of any immovable property.
CS No. 198/16 17/29Maina Devi V/s Rati Ram & Ors.
Sh . G. N. Pandey, Addl. District Judge (NE) Karkardooma Courts, Delhi.
22. This court is guided in view of the judgment of Hon'ble Supreme Court in Suraj Lamps & Industries Pvt Limited versus State of Haryana & Another, reported as 183 (2011) DLT 1 (SC) . As held, the document of title i.e. GPA , Agreement to Sell, Will and receipt would not confer ownership rights in respect of immovable property in his favour. Hon'ble Supreme court vide order dt. 15.05.09 reported as Suraj Lamps & Industries V/s State of Haryana, 2009(7) SCC (366) referred illaffects of GPA sells or sell agreement/ GPA/ will transfer holding that there cannot be sell by execution of power of attorney nor there can be transfer by execution on agreement to sell and power of attorney and will.
It is relevant and necessary to reproduce relevant paras of judgment of Hon'ble Supreme Court in Suraj Lamps ( supra) reported as Manu/SC/1222/2011 which read as under: Scope of an Agreement of Sell:
11. Section 54 of TP Act makes it clear that a contract of sale, that is, an agreement of sale does not, of itself, create any interest in or charge on such property. This Court in Narandas Karsondas V. S. A. Kamtam and Anr. (1977) 3 SCC 247, observed: "A contract of sale does not of itself create any interest in, or charge on, the property. This is expressly declared in Section 54 of the Transfer of Property Act. See Rambaran Prasad Vs. Ram Mohit Hazra ( 1967) 1 SCR 293. The fiduciary character of the personal obligation created by a contract for sale is recognized in Section 3 of the CS No. 198/16 18/29 Maina Devi V/s Rati Ram & Ors.
Sh . G. N. Pandey, Addl. District Judge (NE) Karkardooma Courts, Delhi.
Specific Relief Act, contract for sale is recognized in Section 3 of the Specific Relief Act, 1963, and in Section 91 of the Trusts Act. The personal obligation created by a contract of sale is described in Section 40 of the Transfer of Property Act as an obligation arising out of contract and annexed to the ownership of property, but not amounting to an interest or easement therein."
In India the word ' transfer' is defined with reference to the word ' convey'. The word ' conveys' in section 5 of Transfer of Property Act is used in the wider sense of conveying ownership........ ....... that only on execution of conveyance ownership passes from one party to another ..........."
In Rambhau Namdeo Gajre Vs. Narayan Bapuji Dhotra (2004) (8) SCC 614, this court held: " Protection provided under Section 53 of the Act to the proposal transferee is a shield only against the transferor. It disentitles the tranferor from disturbing the possession of the proposed transferee who is put in possession in pursuance to such an agreement. It has nothing to do with the ownership of the proposed transferor who remains full owner of the property till it is legally conveyed CS No. 198/16 19/29 Maina Devi V/s Rati Ram & Ors.
Sh . G. N. Pandey, Addl. District Judge (NE) Karkardooma Courts, Delhi.
by executing a registered sale deed in favour of the transferee. Such a right to protect possession against the proposed vendor cannot be pressed in service against a third party"
It is thus clear that a transfer of immoveable property by way of sale can only be by a deed of conveyance ( sale deed). In the absence of a deed of conveyance ( duly stamped and registered as required by law), no right, title or interest in an immovable property can be transferred.
12. Any contract of sale( agreement to sell) which is not a registered deed of conveyance ( deed of sale) would fall short of the requirements of Section 54 and 55 of Transfer of Property Act and will not confer any title nor transfer any interest in an immovable property ( except to the limited right granted under Section 53A of Transfer of Property Act). According to Transfer of Property Act, an agreement of sale, whether with possession or without possession, is not a conveyance. Section 54 of Transfer of Property Act enacts that sale of immovable property can be made only by a registered instrument and an agreement of sale does not create any interest or charge on its subject matter.
Scope of Power of Attorney
13.A power of attorney is not an instrument of transfer in regard to CS No. 198/16 20/29 Maina Devi V/s Rati Ram & Ors.
Sh . G. N. Pandey, Addl. District Judge (NE) Karkardooma Courts, Delhi.
any right, title or interest in an immovable property. The power of attorney is creation of an agency whereby the grantor authorizes the grantee to do the acts specified therein, on behalf of grantor, which when executed will be binding on the grantor as if done by him( see section 1A and section 2 of the Powers of Attorney Act, 1882). It is revocable or terminable at any time unless it is made irrevocable in a manner known to law. Even an irrevocable attorney does not have the effect of transferring title to the grantee. In state of Rajasthan v. Basant Nehata MANU/SC/0547/2005 :
MANU/SC/0547/2005 : 2005 (12) SCC 77 this court held :
A grant of power of attorney is essentially governed by Chapter X of the Contract Act. By reason of a deed of power of attorney, an agent is formally appointed to act for the principal in one transaction or a series of transactions or to manage the affairs of the principal generally conferring necessary authority upon another person. A deed of power of attorney is executed by the Principal in favor of the agent. The agent derives a right to use his name and all acts, deeds and things done by him and subject to the limitations contained in the said deed, the same shall be read as if done by the donor. A power of attorney is, as is well known, a document of convenience.
Execution of a power of attorney in terms of the CS No. 198/16 21/29 Maina Devi V/s Rati Ram & Ors.
Sh . G. N. Pandey, Addl. District Judge (NE) Karkardooma Courts, Delhi.
provisions of the Contract Act as also the Powers ofAttorney Act is valid. A power of attorney, we have noticed hereinbefore, is executed by the donor so as to enable the done to act on his behalf. Except in cases where power of attorney is coupled with interest, it is revocable. The done in exercise of his power under such power of attorney only acts in place of the donor subject of course to the powers granted to him by reason thereof. He cannot use the power of attorney for his own benefit. He acts in a fiduciary capacity. Any act of infidelity or breach of trust is a matter between the donor and the donee.
An Attorney holder may however execute a deed of conveyance in exercise of the power granted under the power of attorney and convey title on behalf of grantor.
Scope of Will
14. A will is the testament of the testator.
It is a posthumous disposition of the estate of the testator directing distribution of his estate upon his death. It is not a transfer inter vivo. The two essential characteristics of a will are that it is intended to come into effect only after the death of the testator and is revocable at any time during CS No. 198/16 22/29 Maina Devi V/s Rati Ram & Ors.
Sh . G. N. Pandey, Addl. District Judge (NE) Karkardooma Courts, Delhi.
the life time of the testator.
It is said that so long as the testator is alive, a will is not be worth the paper on which it is written, as the testator can at any time revoke it. If the testator, who is not married, marries after making the will, by operation of law, the will stands revoked. ( see Sections 69 and 70 of Indian Succession Act, 1925). Registration of a will does not make it any more effective.
We therefore reiterate that immovable property can be legally and lawfully transferred/ conveyed only by a registered deed of conveyance. Transaction of the nature of 'GPA sales' or 'SA/GPA/WILL transfers' do not convey title and do not amount to transfer, nor can they be recognized or valid mode of transfer of immovable property. The courts will not treat such transaction as completed or concluded transfers or as conveyances as they neither convey title nor create any interest in an immovable property. They cannot be recognized as deeds of title, except to the limited extent of Section 53A of the Transfer of Property Act. Such transactions cannot be relied upon or made the basis for mutations in Municipal or Revenue Records. What is stated above will apply not only to deeds of conveyance in regard to freehold property but also to transfer of leasehold property. A lease can be validly transferred only under a registered Assignment of Lease. It is time that an end is put to the pernicious practice of SA/GPA/WILL transaction known CS No. 198/16 23/29 Maina Devi V/s Rati Ram & Ors.
Sh . G. N. Pandey, Addl. District Judge (NE) Karkardooma Courts, Delhi.
as GPA sales.
23. A reference to the aforesaid paras shows that unless there is a proper registered sale deed, title of an immovable property does not pass. The Hon'ble Supreme Court has however reiterated that rights which are created pursuant to Section 53A of the Transfer of Property Act, 1882 dealing with the doctrine of part performance ( para 12), an irrevocable right of a person holding a power of attorney given for consideration coupled with interest as per Section 202 of the Contract Act, 1872( para
13) and devolution of interest pursuant to a will( para 14).The object of giving validity to a power of attorney given for consideration even after death of the executants is to ensure that entitlement under such power of attorney remains because the same is not a regular or a routine power of attorney but the same had elements of a commercial transaction which cannot be allowed to be frustrated on account of death of the executant of the power of attorney.
Therefore, no doubt, a person strictly may not have complete ownership rights unless there is a duly registered sale deed, however, certain rights can exist in an immovable property pursuant to the provisions of Section 53A of the Transfer of Property Act, 1882, Section 202 of the Contract Act, 1872. There also takes place devolution of interest after the death of the testator in terms of a Will.
24. It is settled that ownership and possession are two entirely different concepts. It necessarily follows that it is not only possible but also permissible to transfer one without the other. In simple words it is permissible to transfer ownership without transferring possession.
CS No. 198/16 24/29Maina Devi V/s Rati Ram & Ors.
Sh . G. N. Pandey, Addl. District Judge (NE) Karkardooma Courts, Delhi.
Similarly, it is also possible to transfer possession without transferring ownership. It is relevant to note here that in this case neither the ownership had been transferred nor possession of the suit property was ever handed over to the defendant in pursuance of the provisions of the Transfer of Property Act.
25. Section 27 of Indian Stamp Act, 1899 casts upon the party, liable to pay stamp duty, an obligation to set forth in the instrument all facts and circumstances which affects the chargeability of duty on that instrument. Section 17 of the Registration Act, 1908 makes deed of conveyance compulsorily registrable. The transfer of an immovable property can only be by a deed of conveyance and in the absence of a deed of conveyance ( duly stamped and registered as required by law), no right, title or interest in an immovable property can be transfered. With regard to the legal validity of such documents i.e. agreement to sell, GPA, Will and receipt, the Hon'ble Supreme Court in the case of Suraj Lamps and Industries Pvt. Ltd. Vs. State of Haryana reported in AIR 2009 SC 3077 has held that such documents cannot create any right in respect of immovable property. The only way a contract of sale can create title to immovable property is by way of a deed of conveyance as defined under Section 54 of the Transfer of Property Act and registered in pursuance of the provisions of Section 17 of The Registration Act, 1908. No such documents has been executed in favour of plaintiff by defendants.
26. I have gone through the judgment reported as AIR 1969 SC 1316 titled Raghunath & Ors. V/s Kedarnath. In view of the ratio, the unregistered document shall not be received in evidence of any transaction CS No. 198/16 25/29 Maina Devi V/s Rati Ram & Ors.
Sh . G. N. Pandey, Addl. District Judge (NE) Karkardooma Courts, Delhi.
covered by the registered documents. As further held by Hon'ble Delhi High Court in Jagdambey Builders Private Limited V/s J.S. Vohra reported as MANU/DE/0310/2016 , a mere agreement to sell of immovable property does not create any right in the property save the right to enforce the said agreement. The court relying upon the judgment in Jiwan Das V/s Narain Das reported as MANU/DE/0188/1981 held that in fact no rights enure to the agreement purchaser, not even after passing of a decree for specific performance and till conveyance in accordance with law and in pursuance thereto is executed. The person has no right to remain in occupation of the premises or retain possession of the premises merely because of the agreement to sale in his favour.
27. As discussed, plaintiff cannot be considered as owner on the basis of the GPA, agreement to sell, affidavit, receipt and wills executed by defendants in her favour. The plaintiff by no stretch of imagination can be considered to be the owner of the suit property on the basis of documents executed by the defendants in her favour. Neither Section 53 A of the Transfer of Property Act, 1882 nor Section 202 of the Contract Act, 1872 is applicable for ownership of plaintiff and the law laid down the Hon'ble Supreme Court in SLP (C) No. 13917 of 2009 titled as Suraj Lamp Industries Pvt. Ltd. Vs. State of Haryana & Ors. is squarely applicable in the facts of this case.
28. In the present case, plaintiff claimed the title on the basis of GPA, agreement to sell, receipt, affidavit and will but the execution of the documents not proved in accordance with provisions of law. Even if these documents were executed by the defendants in favour of plaintiff, the same CS No. 198/16 26/29 Maina Devi V/s Rati Ram & Ors.
Sh . G. N. Pandey, Addl. District Judge (NE) Karkardooma Courts, Delhi.
would not create any title in her favour and the plaintiff is not the owner of the suit property. Since there is no registered sale deed executed in favour of the plaintiff in respect of the suit property in accordance with provisions of Transfer of Property Act, 1882, the plaintiff is not the owner of the suit premises.
29. In view of the aforesaid discussions and findings, it has been proved that the defendants are the owner of the suit property and the plaintiff has no right, title or interest in respect of the same. There is nothing on record to infer that defendants sold the suit property to the plaintiff or ever handed over the possession in part performance. The best witnesses of plaintiff namely Radha Shyam and Mohan Lal who stated to be present were not examined or produced due the reason best known the plaintiff. No compromise deed also proved by the plaintiff as per law. The plaintiff cannot be considered to be the owner merely on the basis registered receipt. The will executed by late Sh. Jumma Mal in favour of defendant No. 1 have already been probated and there is no dispute in this respect. Admittedly, the plaintiff has not filed any suit for specific performance for executing the sale documents by the defendants. The plaintiff further failed to prove that the possession was handed over as part performance of the agreement to sell and plaintiff was permitted to use the suit property. Thus the only inference which can be drawn in view of the pleadings and evidence led is that the defendants are the owner and the plaintiff has no right of possession. The plaintiff is therefore not entitled for the possession and mesne profits as prayed in the suit.
30. I have gone through the judgment reported as (2003) 8 SCC 752. As CS No. 198/16 27/29 Maina Devi V/s Rati Ram & Ors.
Sh . G. N. Pandey, Addl. District Judge (NE) Karkardooma Courts, Delhi.
held: Whether a civil or a criminal case, the anvil of testing of "
proved", " disproved" and " not proved" as defined in Section 3 of the Indian Evidence Act, 1872 is one and the same. It is the valuation of the result drawn by the applicability of the rule contained in Section 3 of the Evidence Act, 1872 that makes the difference. In a suit for possession of property based on title, if the plaintiff creates a high degree of probability of his title to ownership, instead of proving his title beyond any reasonable doubts, that would be enough to shift the onus on the defendant. If the defendant fails to shift back the onus, the plaintiffs burden of proof would stand discharged so as to amount to proof of the plaintiff's title.
The present case being a civil one, the plaintiff could not be expected to prove his title beyond any reasonable doubt; a high degree of probability lending assurance of the availability of title with him would be enough to shift the onus the plaintiff's burden of proof can safely be deemed to have been discharged. In the opinion of this Court the plaintiff has succeeded in shifting the onus on the defendant and therefore, the burden of proof which lay on the plaintiff had stood discharged.
The ratio of the judgment is squarely applicable in the facts and circumstances of this case.
31. In view of the aforesaid discussions and referred law, this Court is of the considered view that the plaintiff cannot be considered having right, CS No. 198/16 28/29 Maina Devi V/s Rati Ram & Ors.
Sh . G. N. Pandey, Addl. District Judge (NE) Karkardooma Courts, Delhi.
title or interest in the suit property and the documents Ex. P1 to Ex. P6 relied by the plaintiff is neither helpful nor sufficient to prove the claim of the plaintiff in the suit. The plaintiff is therefore not entitled for the reliefs as prayed in the suit and the suit of the plaintiff is therefore liable to be dismissed. Issue No. IV & V are thus decided against the plaintiff and in favour of defendants.
RELIEF: In view of the aforesaid discussions and findings, this court is of the considered opinion that plaintiff has failed to prove her case. The plaintiff is therefore not entitled for any reliefs as prayed in the suit. The suit of the plaintiff is dismissed with cost.
32. Decree sheet be drawn accordingly.
33. File be consigned to record room.
Announced in open Court on this 07th day of November, 2016 G. N. Pandey Addl. District Judge02 (NE) Karkardooma Courts, Delhi.
CS No. 198/16 29/29Maina Devi V/s Rati Ram & Ors.